Exhibit 99.1
VOTING AND EXCHANGE TRUST AGREEMENT
This AGREEMENT is made as of the ________ day of ______________________,
2000
BETWEEN:
INFOSPACE, INC., a corporation incorporated under the laws of
Delaware
("InfoSpace")
- and -
LOCUS HOLDINGS INC., a corporation incorporated under the laws of
Canada
("Locus Holdings")
- and -
MONTREAL TRUST COMPANY OF CANADA, a trust company incorporated
under the laws of Canada,
(the "Trustee")
Background:
1. Pursuant to a Share Exchange Agreement dated as of the 3/rd/ day of
November, 2000 (the "Share Exchange Agreement"), entered into between
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InfoSpace, InfoSpace Nova Scotia, Locus Holdings and Locus Dialogue Inc.
("Locus") and the shareholders of Locus (collectively the "Parties"), the
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Parties have agreed to the acquisition of control of Locus by InfoSpace.
2. Pursuant to the Share Exchange Agreement, shareholders of Locus will have
the option of exchanging their common shares and/or preferred shares, as
the case may be, in the capital of Locus ("Locus Common Shares"), for
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common shares in the capital of InfoSpace ("InfoSpace Common Shares") or
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Locus Exchangeable Shares in the capital of Locus Holdings (the "Locus
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Exchangeable Shares") in accordance with the appropriate exchange ratio in
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the Share Exchange Agreement.
3. In accordance with the Share Exchange Agreement, InfoSpace and Locus
Holdings have agreed to enter into a voting and exchange trust agreement
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with a trustee appointed by the holders of such Locus Exchangeable Shares
substantially in the form of this agreement.
4. Any statements of fact contained in this agreement are made by InfoSpace
and Locus Holdings and not by the Trustee.
NOW THEREFORE in consideration of the respective covenants and agreements
provided in this trust agreement and for other good and valuable consideration
(the receipt and sufficiency of which are hereby acknowledged), the parties
hereto covenant and agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this trust agreement, the following terms shall have the following
meanings:
"Affiliate" of any person means any other person directly or indirectly
controlled by, or under control of, that person. For the purposes of this
definition, "control" (including, with correlative meanings, the terms
"controlled by" and "under common control of"), as applied to any person,
means the possession by another person, directly or indirectly, of the
power to direct or cause the direction of the management and policies of
that first mentioned person, whether through the ownership of voting
securities, by contract or otherwise.
"Automatic Exchange Rights" means the benefit of the obligation of
InfoSpace to effect the automatic exchange of Locus Exchangeable Shares for
InfoSpace Common Shares pursuant to section 5.12.
"Beneficiaries" means the registered holders from time to time of Locus
Exchangeable Shares, other than InfoSpace, its Affiliates and the Trustee.
"Beneficiary Votes" has the meaning ascribed thereto in section 4.2.
"Board of Directors" means the Board of Directors of Locus Holdings.
"Business Day" means any day on which commercial banks are open for
business in Seattle, Washington and Montreal, Quebec, other than a
Saturday, a Sunday or a day observed as a holiday in Montreal, Quebec under
the laws of the Province of Quebec or the federal laws of Canada or in
Seattle, Washington under the laws of the State of Washington or the
federal laws of the United States of America.
"Canadian Dollar Equivalent" means, in respect of an amount expressed in a
currency other than Canadian dollars (the "Foreign Currency Amount") at
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any date, the product obtained by multiplying (a) the Foreign Currency
Amount by (b) the noon spot exchange rate on such date for such foreign
currency expressed in Canadian dollars as reported by the Bank of Canada,
or, in the event such spot exchange rate is not available, such exchange
rate on such date for such foreign currency expressed in Canadian dollars
as may be deemed by the Board of Directors to be appropriate for such
purpose.
"Current Market Price" means, in respect of an InfoSpace Common Share on
any date, the Canadian Dollar Equivalent of the average of the closing bid
and ask prices of InfoSpace Common Shares during a period of 20 consecutive
trading days ending not more than three trading days before such date on
the Nasdaq National Market, or, if the InfoSpace Common Shares are not then
quoted on the Nasdaq National Market, on such other stock exchange or
automated quotation system on which the InfoSpace Common Shares are listed
or quoted, as the case may be, as may be selected by the Board of Directors
for such purpose; provided however, that if in the opinion of the Board of
Directors the public distribution or trading activity of InfoSpace Common
Shares during such period does not create a market which reflects the fair
market value of an InfoSpace Common Share, then the Current Market Price of
an InfoSpace Common Share shall be determined by the Board of Directors, in
good faith and in its sole discretion, and provided further that any such
selection, opinion or determination by the Board of Directors shall be
conclusive and binding.
"Escrow Agreement" means that certain escrow agreement dated the date
hereof between Montreal Trust Company of Canada, InfoSpace, Locus Holdings,
InfoSpace Nova Scotia and the Shareholder Agent named therein.
"Exchange Right" has the meaning ascribed thereto in section 5.1.
"InfoSpace Common Share" means a share of common stock, par value U.S.
$0.0001, in the capital of InfoSpace.
"InfoSpace Consent" has the meaning ascribed thereto in section 4.2.
"InfoSpace Meeting" has the meaning ascribed thereto in section 4.2.
"InfoSpace Nova Scotia" means ▇▇▇▇▇▇▇▇▇.▇▇▇ Nova Scotia Company, an
unlimited liability company existing under the laws of the Province of Nova
Scotia.
"InfoSpace Successor" has the meaning ascribed thereto in section 11.1(a).
"Insolvency Event" means the institution by Locus Holdings of any
proceeding to be adjudicated a bankrupt or insolvent or to be wound up, or
the consent of Locus Holdings to the institution of bankruptcy, insolvency
or winding-up proceedings against it, or the filing of a petition, answer
or consent seeking dissolution or winding-up under any bankruptcy,
insolvency or
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analogous laws, including without limitation the Companies Creditors'
Arrangement Act (Canada) and the Bankruptcy and Insolvency Act (Canada),
and the failure by Locus Holdings to contest in good faith any such
proceedings commenced in respect of Locus Holdings within 30 days of
becoming aware thereof, or the consent by Locus Holdings to the filing of
any such petition or to the appointment of a receiver, or the making by
Locus Holdings of a general assignment for the benefit of creditors, or the
admission in writing by Locus Holdings of its inability to pay its debts
generally as they become due, or Locus Holdings not being permitted,
pursuant to solvency requirements of applicable law, to redeem any
Retracted Shares pursuant to section 7 of the Share Provisions.
"Liquidation Call Right" has the meaning ascribed thereto in section 8.1 of
the Share Provisions.
"Liquidation Event" has the meaning ascribed thereto in section 5.12(b).
"Liquidation Event Effective Date" has the meaning ascribed thereto in
section 5.12(c).
"Locus Exchangeable Shares" means the non-voting exchangeable shares in the
capital of Locus Holdings.
"Locus Voting Share" means the one share of Special Voting Stock, Class B
of InfoSpace, par value U.S.$0.000l, which entitles the holder of record to
a number of votes at meetings of holders of InfoSpace Common Shares equal
to the number of Locus Exchangeable Shares outstanding from time to time
(other than Locus Exchangeable Shares held by InfoSpace and InfoSpace
Affiliates), which share is to be issued to, deposited with, and voted by,
the Trustee as described herein.
"List" has the meaning ascribed thereto in section 4.6.
"Officer's Certificate" means, with respect to InfoSpace or Locus Holdings,
as the case may be, a certificate signed by any one of Chief Executive
Officer, President or Chief Financial Officer of InfoSpace or Locus
Holdings, as the case may be.
"Person" includes an individual, partnership, corporation, company,
unincorporated syndicate or person organization, trust, trustee, executor,
administrator and other legal representative.
"Share Provisions" means the rights, privileges, restrictions and
conditions attaching to the Locus Exchangeable Shares.
"Support Agreement" means that certain exchangeable share support agreement
made as of even date herewith between InfoSpace, InfoSpace Nova Scotia,
Locus Holdings and the Trustee.
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"Trust" means the trust created by this trust agreement.
"Trust Estate" means the Locus Voting Share, any other securities, the
benefit of the Support Agreement and any money or other property which may
be held by the Trustee from time to time pursuant to this trust agreement.
"Trustee" means Montreal Trust Company of Canada and, subject to the
provisions of Article 10, includes any successor trustee.
"Voting Rights" means the voting rights attached to the Locus Voting Share.
1.2 Interpretation Not Affected by Headings, etc.
The division of this trust agreement into Articles, sections and other
portions and the insertion of headings are for convenience of reference only and
should not affect the construction or interpretation of this trust agreement.
Unless otherwise indicated, all references to an "Article" or "section" followed
by a number and/or a letter refer to the specified Article or section of this
trust agreement. The terms "this trust agreement", "hereof" "herein", and
"hereunder" and similar expressions refer to this trust agreement and not to any
particular Article, section or other portion hereof and include any agreement or
instrument supplementary or ancillary hereto.
1.3 Number, Gender, etc.
Words in the singular number only shall include the plural and vice versa.
Words in one gender shall include all genders.
1.4 Date for any Action
If any date on which any action is required to be taken under this trust
agreement is not a Business Day, such action shall be required to be taken on
the next succeeding Business Day.
ARTICLE 2
PURPOSE OF AGREEMENT
2.1 Establishment of Trust
The purpose of this trust agreement is to create the Trust for the benefit
of the Beneficiaries, as herein provided. The Trustee will hold the Trust
Estate in order to enable the Trustee to execute the Voting Rights and will hold
the Exchange Right and the Automatic Exchange Rights in order to enable the
Trustee to exercise such rights, in each case as trustee for and on behalf of
the Beneficiaries as provided in this trust agreement.
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ARTICLE 3
LOCUS VOTING SHARE
3.1 Issue and Ownership of the Locus Voting Share
InfoSpace hereby issues to and deposits with the Trustee, the Locus Voting
Share to be hereafter held of record by the Trustee as trustee for and on behalf
of, and for the use and benefit of, the Beneficiaries and in accordance with the
provisions of this trust agreement. InfoSpace hereby acknowledges receipt from
the Trustee as trustee for and on behalf of the Beneficiaries of good and
valuable consideration (and the adequacy thereof) for the issuance of the Locus
Voting Share by InfoSpace to the Trustee. During the term of the Trust and
subject to the terms and conditions of this trust agreement, the Trustee shall
possess and be vested with full legal ownership of the Locus Voting Share and
shall be entitled to exercise all of the rights and powers of an owner with
respect to the Locus Voting Share provided that the Trustee shall:
(a) hold the Locus Voting Share and the legal title thereto as trustee
solely for the use and benefit of the Beneficiaries in accordance with
the provisions of this trust agreement; and
(b) except as specifically authorized by this trust agreement, have no
power or authority to sell, transfer, vote or otherwise deal in or
with the Locus Voting Share and the Locus Voting Share shall not be
used or disposed of by the Trustee for any purpose other than the
purposes for which this Trust is created pursuant to this trust
agreement.
3.2 Legended Share Certificates
Locus Holdings shall cause each certificate representing Locus Exchangeable
Shares to bear an appropriate legend notifying the Beneficiaries of their right
to instruct the Trustee with respect to the exercise of the Voting Rights in
respect of the Locus Exchangeable Shares of the Beneficiaries.
3.3 Safe Keeping of Certificate
The certificate representing the Locus Voting Share shall at all times be
held in safe keeping by the Trustee.
ARTICLE 4
EXERCISE OF VOTING RIGHTS
4.1 Voting Rights
The Trustee, as the holder of record of the Locus Voting Share, shall be
entitled to all of the Voting Rights, including the right to vote in person or
by proxy the Locus Voting Share on any matters, questions, proposals or
propositions
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whatsoever that may properly come before the shareholders of InfoSpace at an
InfoSpace Meeting or in connection with an InfoSpace Consent. The Voting Rights
shall be and remain vested in and exercised by the Trustee. Subject to section
7.15:
(a) the Trustee shall exercise the Voting Rights only on the basis of
instructions received pursuant to this Article 4 from Beneficiaries
entitled to instruct the Trustee as to the voting thereof at the time
at which the InfoSpace Meeting is held; and
(b) to the extent that no instructions are received from a Beneficiary
with respect to the Voting Rights to which such Beneficiary is
entitled, the Trustee shall not exercise or permit the exercise of
such Voting Rights.
4.2 Number of Votes
With respect to all meetings of shareholders of InfoSpace at which holders
of InfoSpace Common Shares are entitled to vote (each, an "InfoSpace Meeting")
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and with respect to all written consents sought by InfoSpace from its
shareholders including the holders of InfoSpace Common Shares (each, an
"InfoSpace Consent"), each Beneficiary shall be entitled to instruct the Trustee
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to cast and exercise one of the votes comprised in the Voting Rights for each
Locus Exchangeable Share owned of record by such Beneficiary on the record date
established by InfoSpace or by applicable law for such InfoSpace Meeting or
InfoSpace Consent, as the case may be (the "Beneficiary Votes"), in respect of
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each matter, question, proposal or proposition to be voted on at such InfoSpace
Meeting or in connection with such InfoSpace Consent. Any Locus Exchangeable
Shares registered in the name of the Trustee pursuant to the Escrow Agreement
shall for the purposes of the voting provisions contained in this Agreement be
deemed to be Locus Exchangeable Shares owned of record by the Beneficiary as set
out in Annex B to the Escrow Agreement and the votes associated with such shares
shall be included as Beneficiary Votes.
4.3 Mailings to Beneficiaries
With respect to each InfoSpace Meeting and InfoSpace Consent, the Trustee
will mail or cause to be mailed (or otherwise communicate in the same manner as
InfoSpace utilizes in communications to holders of InfoSpace Common Shares,
subject to the Trustee being advised in writing of such method of communication
and its ability to provide such method) to each of the Beneficiaries named in
the List referred to in section 4.6, such mailing or communication to commence
on the same day as the mailing or notice (or other communication) with respect
thereto is commenced by InfoSpace to its shareholders:
(a) a copy of such notice, together with any related materials to be
provided to shareholders of InfoSpace;
(b) a statement that such Beneficiary is entitled to instruct the Trustee
as to the exercise of the Beneficiary Votes with respect to such
InfoSpace Meeting or InfoSpace Consent or, pursuant to section 4.7, to
attend
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such InfoSpace Meeting and to exercise personally the Beneficiary
Votes thereat;
(c) a statement as to the manner in which such instructions may be given
to the Trustee, including an express indication that instructions may
be given to the Trustee to give:
(i) a proxy to such Beneficiary or his designee to exercise
personally the Beneficiary Votes; or
(ii) a proxy to a designated agent or other representative of the
management of InfoSpace to exercise such Beneficiary Votes;
(d) a statement that if no such instructions are received from the
Beneficiary, the Beneficiary Votes to which such Beneficiary is
entitled will not be exercised;
(e) a form of direction whereby the Beneficiary may so direct and instruct
the Trustee as contemplated herein; and
(f) a statement of the time and date by which such instructions must be
received by the Trustee in order to be binding upon it, which in the
case of an InfoSpace Meeting shall not be earlier than the close of
business on the second Business Day prior to such meeting, and of the
method for revoking or amending such instructions.
The materials referred to in sections 4.3(a) through 4.3(f) inclusive shall
be provided by InfoSpace to the Trustee.
For the purpose of determining Beneficiary Votes to which a Beneficiary is
entitled in respect of any InfoSpace Meeting or InfoSpace Consent, the number of
Locus Exchangeable Shares owned of record by the Beneficiary shall be determined
at the close of business on the record date established by InfoSpace or by
applicable law for purposes of determining shareholders entitled to vote at such
InfoSpace Meeting or to execute an InfoSpace Consent. InfoSpace will notify the
Trustee of any decision of the Board of Directors of InfoSpace with respect to
the calling of any InfoSpace Meeting or the seeking of an InfoSpace Consent and
shall provide all necessary information and materials to the Trustee in each
case promptly and in any event in sufficient time to enable the Trustee to
perform its obligations contemplated by this section 4.3.
4.4 Copies of Shareholder Information
InfoSpace will deliver to the Trustee copies of all proxy materials
(including notices of InfoSpace Meetings but excluding proxies to vote InfoSpace
Common Shares), information statements, reports (including without limitation,
all interim and annual financial statements) and other written communications
that, in each case, are to be distributed from time to time to holders of
InfoSpace Common Shares in
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sufficient quantities and in sufficient time so as to enable the Trustee to send
those materials to each Beneficiary at the same time as such materials are first
sent to holders of InfoSpace Common Shares. The Trustee will mail or otherwise
send to each Beneficiary, at the expense of InfoSpace, copies of all such
materials (and all materials specifically directed to the Beneficiaries or to
the Trustee for the benefit of the Beneficiaries by InfoSpace) received by the
Trustee from InfoSpace contemporaneously with the sending of such materials to
holders of InfoSpace Common Shares. The Trustee will also make available for
inspection by any Beneficiary at the Trustee's principal corporate trust office
in the City of Toronto all proxy materials, information statements, reports and
other written communications that are:
(a) received by the Trustee as the registered holder of the Locus Voting
Share and made available by InfoSpace generally to the holders of
InfoSpace Common Shares; or
(b) specifically directed to the Beneficiaries or to the Trustee for the
benefit of the Beneficiaries by InfoSpace.
4.5 Other Materials
As soon as reasonably practicable after receipt by InfoSpace or
shareholders of InfoSpace (if such receipt is known by InfoSpace) of any
material sent or given by or on behalf of a third party to holders of InfoSpace
Common Shares generally, including without limitation, dissident proxy and
information circulars (and related information and material) and tender and
exchange offer circulars (and related information and material), InfoSpace shall
use its reasonable efforts to obtain and deliver to the Trustee copies thereof
in sufficient quantities so as to enable the Trustee to forward such material
(unless the same has been provided directly to Beneficiaries by such third
party) to each Beneficiary as soon as possible thereafter. As soon as
practicable following receipt thereof, the Trustee will mail or otherwise send
to each Beneficiary, at the expense of InfoSpace, copies of all such materials
received by the Trustee from InfoSpace. The Trustee will also make available
for inspection by any Beneficiary at the Trustee's principal corporate trust
office in the City of Toronto copies of all such materials.
4.6 List of Persons Entitled to Vote
Locus Holdings shall, (a) prior to each annual, general and special
InfoSpace Meeting or the seeking of any InfoSpace Consent and (b) forthwith upon
each request made at any time by the Trustee in writing, prepare or cause to be
prepared a list (a "List") of the names and addresses of the Beneficiaries
----
arranged in alphabetical order and showing the number of Locus Exchangeable
Shares held of record by each such Beneficiary, in each case at the close of
business on the date specified by the Trustee in such request or, in the case of
a List prepared in connection with an InfoSpace Meeting or an InfoSpace Consent,
at the close of business on the record date established by InfoSpace or pursuant
to applicable law for determining the holders of
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InfoSpace Common Shares entitled to receive notice of and/or to vote at such
InfoSpace Meeting or to give consent in connection with such InfoSpace Consent.
Each such List shall be delivered to the Trustee promptly after receipt by Locus
Holdings of such request or the record date for such meeting or seeking of
consent, as the case may be, and in any event within sufficient time to permit
the Trustee to perform its obligations under this agreement. InfoSpace agrees to
give Locus Holdings notice (with a copy to the Trustee) of the calling of any
InfoSpace Meeting or the seeking of any InfoSpace Consent, together with the
record dates therefor, sufficiently prior to the record date in connection with
such meeting or seeking of such consent so as to enable Locus Holdings to
perform its obligations under this section 4.6.
4.7 Entitlement to Direct Votes
Any Beneficiary named in a List prepared in connection with any InfoSpace
Meeting or InfoSpace Consent will be entitled (a) to instruct the Trustee in the
manner described in section 4.3 with respect to the exercise of the Beneficiary
Votes to which such Beneficiary is entitled or (b) to attend such meeting and
personally exercise thereat, as the proxy of the Trustee, the Beneficiary Votes
to which such Beneficiary is entitled.
4.8 Voting by Trustee, and Attendance of Trustee Representative at Meeting
(a) In connection with each InfoSpace Meeting and InfoSpace Consent, the
Trustee shall exercise, either in person or by proxy, in accordance
with the instructions received from a Beneficiary pursuant to section
4.3, the Beneficiary Votes as to which such Beneficiary is entitled to
direct the vote (or any lesser number thereof as may be set forth in
the instructions); provided, however, that such written instructions
are received by the Trustee from the Beneficiary prior to the time and
date fixed by the Trustee for receipt of such instructions in the
notice given by the Trustee to the Beneficiary pursuant to section
4.3.
(b) The Trustee shall cause a representative who is empowered by it to
sign and deliver, on behalf of the Trustee, proxies for Voting Rights
to attend each InfoSpace Meeting. Upon submission by a Beneficiary
(or its designee) of identification satisfactory to the Trustee's
representative, and at the Beneficiary's request, such representative
shall sign and deliver to such Beneficiary (or its designee) a proxy
to exercise personally the Beneficiary Votes as to which such
Beneficiary is otherwise entitled hereunder to direct the vote, if
such Beneficiary either (i) has not previously given the Trustee
instructions pursuant to section 4.3 in respect of such meeting or
(ii) submits to such representative written revocation of any such
previous instructions. At such meeting, the Beneficiary exercising
such Beneficiary Votes shall have the same rights as the Trustee to
speak at the meeting in respect of any matter, question, proposal or
proposition, to vote by way of ballot
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at the meeting in respect of any matter, question, proposal or
proposition, and to vote at such meeting by way of a show of hands in
respect of any matter, question or proposition. InfoSpace shall
reimburse the Trustee for any reasonable expenses incurred in the
course of attending or causing a representative to attend each
InfoSpace Meeting.
4.9 Distribution of Written Materials
Any written materials distributed by the Trustee pursuant to this trust
agreement shall be sent by mail (or otherwise communicated in the same manner as
InfoSpace utilizes in communications to holders of InfoSpace Common Shares
subject to the Trustee being advised in writing of such method of communication
and its ability to provide such method) to each Beneficiary at its address as
shown on the books of Locus Holdings. Locus Holdings shall provide or cause to
be provided to the Trustee for this purpose, on a timely basis and without
charge or other expense:
(a) a current List; and
(b) upon the request of the Trustee, mailing labels to enable the Trustee
to carry out its duties under this trust agreement.
4.10 Termination of Voting Rights
All of the rights of a Beneficiary with respect to the Beneficiary Votes
exercisable in respect of the Locus Exchangeable Shares held by such
Beneficiary, including the right to instruct the Trustee as to the voting of or
to vote personally such Beneficiary Votes, shall be deemed to be surrendered by
the Beneficiary to InfoSpace, and such Beneficiary Votes and the Voting Rights
represented thereby shall cease immediately upon the redemption of Locus
Exchangeable Shares pursuant to Section 6 or 7 of the Share Provisions, or upon
the effective date of the liquidation, dissolution or winding-up of Locus
Holdings pursuant to Section 5 of the Share Provisions or upon the purchase of
the Locus Exchangeable Shares by InfoSpace Nova Scotia pursuant to the exercise
by InfoSpace Nova Scotia of the Liquidation Call Right, Redemption Call Right or
Retraction Call Right.
ARTICLE 5
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
5.1 Grant and Ownership of the Exchange Right; Automatic Exchange Rights
InfoSpace hereby grants to the Trustee as trustee for and on behalf of, and
for the use and benefit of, the Beneficiaries the right (the "Exchange Right"),
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upon the occurrence and during the continuance of an Insolvency Event, to
require InfoSpace to purchase from each or any Beneficiary all or any part of
the Locus Exchangeable Shares held by the Beneficiary and the Automatic Exchange
Rights, all in accordance with the provisions of this trust agreement.
InfoSpace hereby acknowledges receipt from the Trustee as trustee for and on
behalf of the Beneficiaries of good and valuable
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consideration (and the adequacy thereof) for the grant of the Exchange Right and
the Automatic Exchange Rights by InfoSpace to the Trustee. During the term of
the Trust and subject to the terms and conditions of this trust agreement, the
Trustee shall possess and be vested with full legal ownership of the Exchange
Right and the Automatic Exchange Rights and shall be entitled to exercise all of
the rights and powers of an owner with respect to the Exchange Right and the
Automatic Exchange Rights, provided that the Trustee shall:
(a) hold the Exchange Right and the Automatic Exchange Rights and the
legal title thereto as trustee solely for the use and benefit of the
Beneficiaries in accordance with the provisions of this trust
agreement; and
(b) except as specifically authorized by this trust agreement, have no
power or authority to exercise or otherwise deal in or with the
Exchange Right or the Automatic Exchange Rights, and the Trustee shall
not exercise any such rights for any purpose other than the purposes
for which the Trust is created pursuant to this trust agreement.
5.2 Legended Share Certificates
Locus Holdings will cause each certificate representing Locus Exchangeable
Shares to bear an appropriate legend notifying the Beneficiaries of:
(a) their right to instruct the Trustee with respect to the exercise of
the Exchange Right in respect of the Locus Exchangeable Shares held by
a Beneficiary; and
(b) the Automatic Exchange Rights.
5.3 General Exercise of Exchange Right
The Exchange Right shall be and remain vested in and exercisable by the
Trustee. Subject to section 7.15, the Trustee shall exercise the Exchange
Right only on the basis of instructions received pursuant to this Article 5 from
Beneficiaries entitled to instruct the Trustee as to the exercise thereof. To
the extent that no instructions are received from a Beneficiary with respect to
the Exchange Right, the Trustee shall not exercise or permit the exercise of the
Exchange Right.
5.4 Purchase Price
The purchase price payable by InfoSpace for each Locus Exchangeable Share
to be purchased by InfoSpace under the Exchange Right shall be an amount per
share equal to (a) the Current Market Price of an InfoSpace Common Share on the
last Business Day prior to the day of closing of the purchase and sale of such
Locus Exchangeable Share under the Exchange Right, which shall be satisfied in
full by InfoSpace causing to be sent to such holder one InfoSpace Common Share,
plus (b)
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to the extent not paid by Locus Holdings, an additional amount equivalent to the
full amount of all declared and unpaid dividends on each such Locus Exchangeable
Share held by such holder on any dividend record date which occurred prior to
the closing of the purchase and sale. The purchase price for each such Locus
Exchangeable Share so purchased may be satisfied only by InfoSpace issuing and
delivering or causing to be delivered to the Trustee, on behalf of the relevant
Beneficiary, one InfoSpace Common Share and on the applicable payment date a
cheque for the balance, if any, of the purchase price without interest (but less
any amounts withheld pursuant to section 5.13).
5.5 Exercise Instructions
Subject to the terms and conditions herein set forth, a Beneficiary shall
be entitled, upon the occurrence and during the continuance of an Insolvency
Event, to instruct the Trustee to exercise the Exchange Right with respect to
all or any part of the Locus Exchangeable Shares registered in the name of such
Beneficiary on the books of Locus Holdings. To cause the exercise of the
Exchange Right by the Trustee, the Beneficiary shall deliver to the Trustee, in
person or by certified or registered mail, at its principal corporate trust
office in Toronto, Ontario or at such other places in Canada as the Trustee may
from time to time designate by written notice to the Beneficiaries, the
certificates representing the Locus Exchangeable Shares which such Beneficiary
desires InfoSpace to purchase, duly endorsed in blank for transfer, and
accompanied by such other documents and instruments as may be required to effect
a transfer of Locus Exchangeable Shares under the Canada Business Corporations
Act and the articles and by-laws of Locus Holdings and such additional documents
and instruments as the Trustee may reasonably require together with (a) a duly
completed form of notice of exercise of the Exchange Right, contained on the
reverse of or attached to the Locus Exchangeable Share certificates, stating (i)
that the Beneficiary thereby instructs the Trustee to exercise the Exchange
Right so as to require InfoSpace to purchase from the Beneficiary the number of
Locus Exchangeable Shares specified therein, (ii) that such Beneficiary has good
title to and owns all such Locus Exchangeable Shares to be acquired by InfoSpace
free and clear of all liens, claims and encumbrances, (iii) the names in which
the certificates representing InfoSpace Common Shares issuable in connection
with the exercise of the Exchange Right are to be issued and (iv) the names and
addresses of the persons to whom such InfoSpace Common Share certificates should
be delivered and (b) payment (or evidence satisfactory to the Trustee, Locus
Holdings and InfoSpace of payment) of the taxes (if any) payable as contemplated
by section 5.8 of this trust agreement. If only a portion of the Locus
Exchangeable Shares represented by any certificate or certificates delivered to
the Trustee are to be purchased by InfoSpace under the Exchange Right, a new
certificate for the balance of such Locus Exchangeable Shares shall be issued to
the holder at the expense of Locus Holdings.
5.6 Delivery of InfoSpace Common Shares; Effect of Exercise
Promptly after receipt of the certificates representing the Locus
Exchangeable Shares which the Beneficiary desires InfoSpace to purchase under
the Exchange
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Right, together with such documents and instruments of transfer and a duly
completed form of notice of exercise of the Exchange Right (and payment of
taxes, if any, payable as contemplated by section 5.8 or evidence thereof), duly
endorsed for transfer to InfoSpace, the Trustee shall notify InfoSpace and Locus
Holdings of its receipt of the same, which notice to InfoSpace and Locus
Holdings shall constitute exercise of the Exchange Right by the Trustee on
behalf of the holder of such Locus Exchangeable Shares, and InfoSpace shall
promptly thereafter deliver or cause to be delivered to the Trustee, for
delivery to the Beneficiary of such Locus Exchangeable Shares (or to such other
persons, if any, properly designated by such Beneficiary) the number of
InfoSpace Common Shares issuable in connection with the exercise of the Exchange
Right, and on the applicable payment date cheques for the balance, if any, of
the total purchase price therefor without interest (but less any amounts
withheld pursuant to section 5.13); provided, however, that no such delivery
shall be made unless and until the Beneficiary requesting the same shall have
paid the taxes (or provided evidence satisfactory to the Trustee, Locus Holdings
and InfoSpace of the payment of the taxes, if any, payable) as contemplated by
section 5.8 of this trust agreement. Immediately upon the giving of notice by
the Trustee to InfoSpace and Locus Holdings of the exercise of the Exchange
Right as provided in this section 5.6, the closing of the transaction of
purchase and sale contemplated by the Exchange Right shall be deemed to have
occurred and the holder of such Locus Exchangeable Shares shall be deemed to
have transferred to InfoSpace all of such holder's right, title and interest in
and to such Locus Exchangeable Shares and the related interest in the Trust
Estate and shall cease to be a holder of such Locus Exchangeable Shares and
shall not be entitled to exercise any of the rights of a holder in respect
thereof, other than the right to receive his proportionate part of the total
purchase price therefor, unless the requisite number of InfoSpace Common Shares
is not allotted, issued and delivered by InfoSpace to the Trustee within five
Business Days of the date of the giving of such notice by the Trustee, in which
case the rights of the Beneficiary shall remain unaffected until such InfoSpace
Common Shares are so allotted, issued and delivered by InfoSpace. Upon delivery
by InfoSpace to the Trustee of such InfoSpace Common Shares, the Trustee shall
deliver such InfoSpace Common Shares to such Beneficiary (or to such other
persons, if any, properly designated by such Beneficiary). Concurrently with
such Beneficiary ceasing to be a holder of Locus Exchangeable Shares, the
Beneficiary shall be considered and deemed for all purposes to be the holder of
the InfoSpace Common Shares delivered to it pursuant to the Exchange Right.
5.7 Exercise of Exchange Right Subsequent to Retraction
In the event that a Beneficiary has exercised its right under Article 6 of
the Share Provisions to require Locus Holdings to redeem any or all of the Locus
Exchangeable Shares held by the Beneficiary (the "Retracted Shares") and is
----------------
notified by Locus Holdings pursuant to section 6.6 of the Share Provisions that
Locus Holdings will not be permitted as a result of solvency requirements of
applicable law to redeem all such Retracted Shares, and provided that InfoSpace
Nova Scotia shall not have exercised the Retraction Call Right with respect to
the Retracted Shares and that the Beneficiary has not revoked the retraction
request delivered by the Beneficiary
Page 15
to Locus Holdings pursuant to section 6.7 of the Share Provisions, the
retraction request will constitute and will be deemed to constitute notice from
the Beneficiary to the Trustee instructing the Trustee to exercise the Exchange
Right with respect to those Retracted Shares that Locus Holdings is unable to
redeem. In any such event, Locus Holdings hereby agrees with the Trustee and in
favour of the Beneficiary promptly to forward or cause to be forwarded to the
Trustee all relevant materials delivered by the Beneficiary to Locus Holdings or
to the transfer agent of the Locus Exchangeable Shares (including without
limitation, a copy of the retraction request delivered pursuant to section 6.1
of the Share Provisions) in connection with such proposed redemption of the
Retracted Shares and the Trustee will thereupon exercise the Exchange Right with
respect to the Retracted Shares that Locus Holdings is not permitted to redeem
and will require InfoSpace to purchase such shares in accordance with the
provisions of this Article 5.
5.8 Stamp or Other Transfer Taxes
Upon any sale of Locus Exchangeable Shares to InfoSpace pursuant to the
Exchange Right or the Automatic Exchange Rights, the share certificate or
certificates representing InfoSpace Common Shares to be delivered in connection
with the payment of the total purchase price therefor shall be issued in the
name of the Beneficiary of the Locus Exchangeable Shares so sold or in such
names as such Beneficiary may otherwise direct in writing without charge to the
holder of the Locus Exchangeable Shares so sold; provided, however, that such
Beneficiary (a) shall pay (and none of InfoSpace, Locus Holdings or the Trustee
shall be required to pay) any documentary, stamp, transfer or other taxes that
may be payable in respect of any transfer involved in the issuance or delivery
of such shares to a person other than such Beneficiary or (b) shall have
evidenced to the satisfaction of the Trustee, InfoSpace and Locus Holdings that
such taxes, if any, have been paid.
5.9 Notice of Insolvency Event
As soon as practicable following the occurrence of an Insolvency Event or
any event that with the giving of notice or the passage of time or both would be
an Insolvency Event, Locus Holdings and InfoSpace shall give written notice
thereof to the Trustee. As soon as practicable following the receipt of notice
from Locus Holdings and InfoSpace of the occurrence of an Insolvency Event, or
upon the Trustee becoming aware of an Insolvency Event, the Trustee will mail to
each Beneficiary, at the expense of InfoSpace, a notice of such Insolvency
Event, which notice shall contain a brief statement of the rights of the
Beneficiaries with respect to the Exchange Right.
5.10 Qualification of InfoSpace Common Shares
InfoSpace covenants that if any InfoSpace Common Shares to be issued and
delivered pursuant to the Exchange Right or the Automatic Exchange Rights
require registration or qualification with or approval of or the filing of any
document, including any prospectus or similar document, or the taking of any
proceeding with or
Page 16
the obtaining of any order, ruling or consent from any governmental or
regulatory authority under any Canadian or United States federal, provincial or
state law or regulation or pursuant to the rules and regulations of any
regulatory authority or the fulfillment of any other Canadian or United States
federal, provincial or state legal requirement before such shares may be issued
and delivered by InfoSpace to the initial holder thereof or in order that such
shares may be freely traded thereafter (other than any restrictions of general
application on transfer by reason of a holder being a "control person" of
--------------
for purposes of Canadian provincial securities law or an "affiliate" of
---------
InfoSpace for purposes of United States federal or state securities law),
InfoSpace will in good faith expeditiously take all such actions and do all such
things as are necessary or desirable to cause such InfoSpace Common Shares to be
and remain duly registered, qualified or approved. InfoSpace will in good faith
expeditiously take all such actions and do all such things as are reasonably
necessary or desirable to cause all InfoSpace Common Shares to be delivered
pursuant to the Exchange Right or the Automatic Exchange Rights to be listed,
quoted or posted for trading on all stock exchanges and quotation systems on
which outstanding InfoSpace Common Shares have been listed by InfoSpace and
remain listed and are quoted or posted for trading at such time.
5.11 InfoSpace Common Shares
InfoSpace hereby represents, warrants and covenants that the InfoSpace
Common Shares issuable as described herein will be duly authorized and validly
issued as fully paid and non-assessable and shall be free and clear of any lien,
claim or encumbrance.
5.12 Automatic Exchange on Liquidation of InfoSpace
(a) InfoSpace will give the Trustee written notice of each of the
following events at the time set forth below:
(i) in the event of any determination by the board of directors of
InfoSpace to institute voluntary liquidation, dissolution or
winding-up proceedings with respect to InfoSpace or to effect any
other distribution of assets of InfoSpace among its shareholders
for the purpose of winding up its affairs, at least 60 days prior
to the proposed effective date of such liquidation, dissolution,
winding-up or other distribution; and
(ii) as soon as practicable following the earlier of (A) receipt by
InfoSpace of notice of, and (B) InfoSpace otherwise becoming
aware of, any threatened or instituted claim, suit, petition or
other proceedings with respect to the involuntary liquidation,
dissolution or winding-up of InfoSpace or to effect any other
distribution of assets of InfoSpace among its shareholders for
the purpose of winding up its affairs, in each case where
InfoSpace has failed to contest in good faith any such
Page 17
proceeding commenced in respect of InfoSpace within 30 days of
becoming aware thereof.
(b) As soon as practicable following receipt by the Trustee from InfoSpace
of notice of any event (a "Liquidation Event") contemplated by section
-----------------
5.12 (a) (i) or 5.12 (a) (ii) above, the Trustee will give notice
thereof to the Beneficiaries. Such notice will be provided by
InfoSpace to the Trustee and shall include a brief description of the
automatic exchange of Locus Exchangeable Shares for InfoSpace Common
Shares provided for in section 5.12(c).
(c) In order that the Beneficiaries will be able to participate on a pro
rata basis with the holders of InfoSpace Common Shares in the
distribution of assets of InfoSpace in connection with a Liquidation
Event, on the fifth Business Day prior to the effective date (the
"Liquidation Event Effective Date") of a Liquidation Event all of the
--------------------------------
then outstanding Locus Exchangeable Shares shall be automatically
exchanged for InfoSpace Common Shares. To effect such automatic
exchange, InfoSpace shall purchase on the fifth Business Day prior to
the Liquidation Event Effective Date each Locus Exchangeable Share
then outstanding and held by Beneficiaries, and each Beneficiary shall
sell the Locus Exchangeable Shares held by it at such time, for a
purchase price per share equal to (a) the Current Market Price of an
InfoSpace Common Share on the fifth Business Day prior to the
Liquidation Event Effective Date, which shall be satisfied in full by
InfoSpace issuing to the Beneficiary one InfoSpace Common Share, and
(b) to the extent not paid by Locus Holdings, an additional amount
equivalent to the full amount of all declared and unpaid dividends on
each such Locus Exchangeable Share held by such holder on any dividend
record date which occurred prior to the date of the exchange.
(d) On the fifth Business Day prior to the Liquidation Event Effective
Date, the closing of the transaction of purchase and sale contemplated
by the automatic exchange of Locus Exchangeable Shares for InfoSpace
Common Shares shall be deemed to have occurred, and each Beneficiary
shall be deemed to have transferred to InfoSpace all of the
Beneficiary's right, title and interest in and to such Beneficiary's
Locus Exchangeable Shares and the related interest in the Trust Estate
and shall cease to be a holder of such Locus Exchangeable Shares and
InfoSpace shall issue to the Beneficiary the InfoSpace Common Shares
issuable upon the automatic exchange of Locus Exchangeable Shares for
InfoSpace Common Shares and on the applicable payment date shall
deliver to the Trustee for delivery to the Beneficiary a cheque for
the balance, if any, of the total purchase price for such Locus
Exchangeable Shares without interest but less any amounts withheld
pursuant to section 5.13. Concurrently with such Beneficiary ceasing
Page 18
to be a holder of Locus Exchangeable Shares, the Beneficiary shall be
considered and deemed for all purposes to be the holder of the
InfoSpace Common Shares issued pursuant to the automatic exchange of
Locus Exchangeable Shares for InfoSpace Common Shares and the
certificates held by the Beneficiary previously representing the Locus
Exchangeable Shares exchanged by the Beneficiary with InfoSpace
pursuant to such automatic exchange shall thereafter be deemed to
represent InfoSpace Common Shares issued to the Beneficiary by
InfoSpace pursuant to such automatic exchange. Upon the request of a
Beneficiary and the surrender by the Beneficiary of Locus Exchangeable
Share certificates deemed to represent InfoSpace Common Shares, duly
endorsed in blank and accompanied by such instruments of transfer as
InfoSpace may reasonably require, InfoSpace shall deliver or cause to
be delivered to the Beneficiary certificates representing InfoSpace
Common Shares of which the Beneficiary is the holder.
5.13 Withholding Rights
InfoSpace and Locus Holdings shall be entitled to deduct and withhold from
any consideration otherwise payable under this trust agreement to any holder of
Locus Exchangeable Shares or InfoSpace Common Shares such amounts as InfoSpace
or Locus Holdings is required or permitted to deduct and withhold with respect
to such payment under the Income Tax Act (Canada), the United States Internal
Revenue Code of 1986 or any provision of provincial, state, local or foreign tax
law, in each case as amended or succeeded. To the extent that amounts are so
withheld, such withheld amounts shall be treated for all purposes as having been
paid to the holder of the shares in respect of which such deduction and
withholding was made, provided that such withheld amounts are actually remitted
to the appropriate taxing authority. To the extent that the amount so required
or permitted to be deducted or withheld from any payment to a holder exceeds the
cash portion of the consideration otherwise payable to the holder, InfoSpace and
Locus Holdings are hereby authorized to sell or otherwise dispose of such
portion of the consideration as is necessary to provide sufficient funds to
InfoSpace or Locus Holdings, as the case may be, to enable it to comply with
such deduction or withholding requirement and InfoSpace or Locus Holdings shall
notify the holder thereof and remit to such holder any unapplied balance of the
net proceeds of such sale. InfoSpace represents and warrants that, based upon
facts currently known to it, it has no current intention, as at the date of this
Agreement, to deduct or withhold from any dividend paid to holders of Locus
Exchangeable Shares any amounts under the United States Internal Revenue Code of
1986.
Page 19
ARTICLE 6
RESTRICTIONS ON ISSUE OF LOCUS VOTING SHARES
6.1 Issue of Additional Shares
During the term of this trust agreement, InfoSpace shall not, without the
consent of the holders at the relevant time of Locus Exchangeable Shares, given
in accordance with subsection 11.2 of the Share Provisions, issue any Locus
Voting Shares in addition to the Locus Voting Share.
ARTICLE 7
CONCERNING THE TRUSTEE
7.1 Powers and Duties of the Trustee
The rights, powers, duties and authorities of the Trustee under this trust
agreement, in its capacity as Trustee of the Trust, shall include:
(a) receipt and deposit of the Locus Voting Share from InfoSpace as
Trustee for and on behalf of the Beneficiaries in accordance with the
provisions of this trust agreement;
(b) granting proxies and distributing materials to Beneficiaries as
provided in this trust agreement;
(c) voting the Beneficiary Votes in accordance with the provisions of this
trust agreement;
(d) receiving the grant of the Exchange Right and the Automatic Exchange
Rights from InfoSpace as Trustee for and on behalf of the
Beneficiaries in accordance with the provisions of this trust
agreement;
(e) exercising the Exchange Right and enforcing the benefit of the
Automatic Exchange Rights, in each case in accordance with the
provisions of this trust agreement, and in connection therewith
receiving from Beneficiaries Locus Exchangeable Shares and other
requisite documents and distributing to such Beneficiaries InfoSpace
Common Shares and cheques, if any, to which such Beneficiaries are
entitled upon the exercise of the Exchange Right or pursuant to the
Automatic Exchange Rights, as the case may be;
(f) receiving the benefit of the Support Agreement from InfoSpace as
Trustee for and on behalf of the Beneficiaries in accordance with the
provisions thereof and of this trust agreement;
(g) enforcing the benefit of the Support Agreement in accordance with the
provisions thereof and of this trust agreement;
Page 20
(h) holding title to the Trust Estate;
(i) investing any moneys, forming, from time to time, a part of the Trust
Estate as provided in this trust agreement;
(j) distributing any money, forming, from time to time, a part of the
Trust Estate as provided in this trust agreement;
(k) taking action on its own initiative or at the direction of a
Beneficiary or Beneficiaries to enforce the obligations of InfoSpace
and Locus Holdings under this trust agreement and the Support
Agreement; and
(l) taking such other actions and doing such other things as are
specifically provided in this trust agreement.
In the exercise of such rights, powers, duties and authorities, the Trustee
shall have (and is granted) such incidental and additional rights, powers,
duties and authority not in conflict with any of the provisions of this trust
agreement as the Trustee, acting in good faith and in the reasonable exercise of
its discretion, may deem necessary, appropriate or desirable to effect the
purpose of the Trust. Any exercise of such discretionary rights, powers, duties
and authorities by the Trustee shall be final, conclusive and binding upon all
persons.
The Trustee in exercising its rights, powers, duties and authorities
hereunder shall act honestly and in good faith and with a view to the best
interests of the Beneficiaries and shall exercise the care, diligence and skill
that a reasonably prudent trustee would exercise in comparable circumstances.
7.2 No Conflict of Interest
The Trustee represents to InfoSpace and Locus Holdings that at the date of
execution and delivery of this trust agreement there exists no material conflict
of interest in the role of the Trustee as a fiduciary hereunder and the role of
the Trustee in any other capacity. The Trustee shall, within 90 days after it
becomes aware that such material conflict of interest exists, either eliminate
such material conflict of interest or resign in the manner and with the effect
specified in Article 10. If, notwithstanding the foregoing provisions of this
section 7.2, the Trustee has such a material conflict of interest, the validity
and enforceability of this trust agreement shall not be affected in any manner
whatsoever by reason only of the existence of such material conflict of
interest. If the Trustee contravenes the foregoing provisions of this section
7.2, any interested party may apply to the Ontario Court of Justice (General
Division) for an order that the Trustee be replaced as Trustee hereunder.
7.3 Dealings with Transfer Agents, Registrars, etc.
InfoSpace and Locus Holdings irrevocably authorize the Trustee, from time
to time, to:
Page 21
(a) consult, communicate and otherwise deal with the respective registrars
and transfer agents, and with any such subsequent registrar or
transfer agent, of the Locus Exchangeable Shares and InfoSpace Common
Shares; and
(b) requisition from time to time, (i) from any such registrar or transfer
agent any information readily available from the records maintained by
it which the Trustee may reasonably require for the discharge of its
duties and responsibilities under this agreement and (ii) from the
transfer agent of InfoSpace Common Shares, and any subsequent transfer
agent of such shares, the share certificates issuable upon the
exercise from time to time of the Exchange Right and pursuant to the
Automatic Exchange Rights.
InfoSpace and Locus Holdings irrevocably authorize their respective
registrars and transfer agents to comply with all such requests. InfoSpace
covenants that it will supply its transfer agent with duly executed share
certificates for the purpose of completing the exercise from time to time of the
Exchange Right and the Automatic Exchange Rights.
7.4 Books and Records
The Trustee shall keep available for inspection by InfoSpace and Locus
Holdings at the Trustee's principal corporate trust office in Toronto, Ontario
correct and complete books and records of account relating to the Trust created
by this trust agreement, including without limitation, all relevant data
relating to mailings and instructions to and from Beneficiaries. On or before
March 31, 2001, and on or before March 31 in every year thereafter, so long as
the Locus Voting Share is on deposit with the Trustee, the Trustee shall
transmit to InfoSpace and Locus Holdings a brief report, dated as of the
preceding December 31, with respect to:
(a) the property and funds comprising the Trust Estate as of that date;
(b) the number of exercises of the Exchange Right, if any, and the
aggregate number of Locus Exchangeable Shares received by the Trustee
on behalf of the Beneficiaries in consideration of the issuance by
InfoSpace of InfoSpace Common Shares in connection with the Exchange
Right, during the calendar year ended on such December 31; and
(c) any action taken by the Trustee in the performance of its duties under
this trust agreement which it had not previously reported and which,
in the Trustee's opinion, materially affects the Trust Estate.
Page 22
7.5 Income Tax Returns and Reports
The Trustee shall, if so advised by InfoSpace or Locus Holdings, prepare
and file on behalf of the Trust appropriate United States and Canadian income
tax returns and any other returns or reports as may be required by applicable
law or pursuant to the rules and regulations of any securities exchange or other
trading system through which the Locus Exchangeable Shares are traded. The
Trustee may retain such experts as it may consider necessary in preparing such
returns. If requested by the Trustee, InfoSpace shall retain such experts for
the purposes of providing such advice and assistance.
7.6 Indemnification Prior to Certain Actions by Trustee
The Trustee shall exercise any or all of the rights, duties, powers or
authorities vested in it by this trust agreement at the request, order or
direction of any Beneficiary upon such Beneficiary furnishing to the Trustee
reasonable security or indemnity against the costs, expenses and liabilities
which may be incurred by the Trustee therein or thereby, provided that no
Beneficiary shall be obligated to furnish to the Trustee any such security or
indemnity in connection with the exercise by the Trustee of any of its rights,
duties, powers and authorities with respect to the Locus Voting Share pursuant
to Article 4, subject to section 7.15.
None of the provisions contained in this trust agreement shall require the
Trustee to expend or risk its own funds or otherwise incur financial liability
in the exercise of any of its rights, powers, duties, or authorities unless
funded, given security and indemnified as aforesaid.
7.7 Action of Beneficiaries
No Beneficiary shall have the right to institute any action, suit or
proceeding or to exercise any other remedy authorized by this trust agreement
for the purpose of enforcing any of its rights hereunder or in connection with
the Locus Exchangeable Shares or for the execution of any trust or power
hereunder unless the Beneficiary has requested the Trustee to take or institute
such action, suit or proceeding and furnished the Trustee with the security or
indemnity referred to in section 7.6 and the Trustee shall have failed to act
within a reasonable time thereafter. In such case, but not otherwise, the
Beneficiary shall be entitled to take proceedings in any court of competent
jurisdiction such as the Trustee might have taken; it being understood and
intended that no one or more Beneficiaries shall have any right in any manner
whatsoever to affect, disturb or prejudice the rights hereby created by any such
action, or to enforce any right hereunder or the Voting Rights, except subject
to the conditions and in the manner herein provided, and that all powers and
trusts hereunder shall be exercised and all proceedings at law shall be
instituted, had and maintained by the Trustee, except only as herein provided,
and in any event for the equal benefit of all Beneficiaries.
Page 23
7.8 Reliance Upon Declarations
The Trustee shall not be considered to be in contravention of any its
rights, powers, duties and authorities hereunder if, when required, it acts and
relies in good faith upon statutory declarations, certificates, opinions or
reports furnished pursuant to the provisions hereof or required by the Trustee
to be furnished to it in the exercise of its rights, powers, duties and
authorities hereunder if such statutory declarations, certificates, opinions or
reports comply with the provisions of section 7.9, if applicable, and with any
other applicable provisions of this trust agreement.
7.9 Evidence and Authority to Trustee
InfoSpace and/or Locus Holdings shall furnish to the Trustee evidence of
compliance with the conditions provided for in this trust agreement relating to
any action or step required or permitted to be taken by InfoSpace and/or Locus
Holdings or the Trustee under this trust agreement or as a result of any
obligation imposed under this trust agreement, including, without limitation, in
respect of the Voting Rights or the Exchange Right or the Automatic Exchange
Rights and the taking of any other action to be taken by the Trustee at the
request of or on the application of InfoSpace and/or Locus Holdings promptly if
and when:
(a) such evidence is required by any other section of this trust agreement
to be furnished to the Trustee in accordance with the terms of this
section 7.9; or
(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this trust agreement, gives InfoSpace and/or Locus
Holdings written notice requiring it to furnish such evidence in
relation to any particular action or obligation specified in such
notice.
Such evidence shall consist of an Officer's Certificate of InfoSpace and/or
Locus Holdings or a statutory declaration or a certificate made by persons
entitled to sign an Officer's Certificate stating that any such condition has
been complied with in accordance with the terms of this trust agreement.
Whenever such evidence relates to a matter other than the Voting Rights or
the Exchange Right or the Automatic Exchange Rights or the taking of any other
action to be taken by the Trustee at the request or on the application of
InfoSpace and/or Locus Holdings, and except as otherwise specifically provided
herein, such evidence may consist of a report or opinion of any solicitor,
attorney, auditor, accountant, appraiser, valuer, engineer or other expert or
any other person whose qualifications give authority to a statement made by him,
provided that if such report or opinion is furnished by a director, officer or
employee of InfoSpace and/or Locus Holdings it shall be in the form of an
Officer's Certificate or a statutory declaration.
Each statutory declaration, Officer's Certificate, opinion or report
furnished to the Trustee as evidence of compliance with a condition provided for
in this trust agreement shall include a statement by the person giving the
evidence:
Page 24
(a) declaring that he has read and understands the provisions of this
trust agreement relating to the condition in question;
(b) describing the nature and scope of the examination or investigation
upon which he based the statutory declaration, certificate, statement
or opinion; and
(c) declaring that he has made such examination or investigation as he
believes is necessary to enable him to make the statements or give the
opinions contained or expressed therein.
7.10 Experts, Advisers and Agents
The Trustee may:
(a) in relation to these presents act and rely on the opinion or advice of
or information obtained from any solicitor, attorney, auditor,
accountant, appraiser, valuer, engineer or other expert, whether
retained by the Trustee or by InfoSpace and/or Locus Holdings or
otherwise, and may employ such assistants as may be necessary to the
proper discharge of its powers and duties and determination of its
rights hereunder and may pay proper and reasonable compensation for
all such legal and other advice or assistance as aforesaid; and
(b) employ such agents and other assistants as it may reasonably require
for the proper discharge of its powers and duties hereunder, and may
pay reasonable remuneration for all services performed for it (and
shall be entitled to receive reasonable remuneration for all services
performed by it) in the discharge of the trusts hereof and
compensation for all disbursements, costs and expenses made or
incurred by it in the discharge of its duties hereunder and in the
management of the Trust.
7.11 Investment of Moneys Held by Trustee
Unless otherwise provided in this trust agreement, any moneys held by or on
behalf of the Trustee which under the terms of this trust agreement may or ought
to be invested or which may be on deposit with the Trustee or which may be in
the hands of the Trustee may be invested and reinvested in the name or under the
control of the Trustee in securities in which, under the laws of the Province of
Ontario, trustees are authorized to invest trust moneys, provided that such
securities are stated to mature within two years after their purchase by the
Trustee, and the Trustee shall so invest such moneys on the written direction of
Locus Holdings. Pending the investment of any moneys as hereinbefore provided,
such moneys may be deposited in the name of the Trustee in the deposit
department of the Trustee or any other loan or trust company authorized to
accept deposits under the laws of Canada or any province thereof at the rate of
interest then current on similar deposits.
Page 25
7.12 Trustee Not Required to Give Security
The Trustee shall not be required to give any bond or security in respect
of the execution of the trusts, rights, duties, powers and authorities of this
trust agreement or otherwise in respect of the premises.
7.13 Trustee Not Bound to Act on Request
Except as in this trust agreement otherwise specifically provided, the
Trustee shall not be bound to act in accordance with any direction or request of
InfoSpace and/or Locus Holdings or of the directors thereof until a duly
authenticated copy of the instrument or resolution containing such direction or
request shall have been delivered to the Trustee, and the Trustee shall be
empowered to act upon any such copy purporting to be authenticated and believed
by the Trustee to be genuine.
7.14 Authority to Carry on Business
The Trustee represents to InfoSpace and Locus Holdings that at the date of
execution and delivery by it of this trust agreement it is authorized to carry
on the business of a trust company in each of the Provinces of Canada but if,
notwithstanding the provisions of this section 7.14, it ceases to be so
authorized to carry on business, the validity and enforceability of this trust
agreement and the Voting Rights, the Exchange Right and the Automatic Exchange
Rights shall not be affected in any manner whatsoever by reason only of such
event but the Trustee shall, within 90 days after ceasing to be authorized to
carry on the business of a trust company in any Province of Canada, either
become so authorized or resign in the manner and with the effect specified in
Article 10.
7.15 Conflicting Claims
If conflicting claims or demands are made or asserted with respect to any
interest of any Beneficiary in any Locus Exchangeable Shares, including any
disagreement between the heirs, representatives, successors or assigns
succeeding to all or any part of the interest of any Beneficiary in any Locus
Exchangeable Shares, resulting in conflicting claims or demands being made in
connection with such interest, then the Trustee shall be entitled, at its sole
discretion, to refuse to recognize or to comply with any such claims or demands.
In so refusing, the Trustee may elect not to exercise any Voting Rights,
Exchange Rights or Automatic Exchange Rights subject to such conflicting claims
or demands and, in so doing, the Trustee shall not be or become liable to any
person on account of such election or its failure or refusal to comply with any
such conflicting claims or demands. The Trustee shall be entitled to continue
to refrain from acting and to refuse to act until:
(a) the rights of all adverse claimants with respect to the Voting Rights,
Exchange Right or Automatic Exchange Rights subject to such
conflicting claims or demands have been adjudicated by a final
judgment of a court of competent jurisdiction; or
Page 26
(b) all differences with respect to the Voting Rights, Exchange Right or
Automatic Exchange Rights subject to such conflicting claims or
demands have been conclusively settled by a valid written agreement
binding on all such adverse claimants, and the Trustee shall have been
furnished with an executed copy of such agreement certified to be in
full force and effect.
If the Trustee elects to recognize any claim or comply with any demand
made by any such adverse claimant, it may in its discretion require such
claimant to furnish such surety bond or other security satisfactory to the
Trustee as it shall deem appropriate to fully indemnify it as between all
conflicting claims or demands.
7.16 Acceptance of Trust
The Trustee hereby accepts the Trust created and provided for by and in
this trust agreement and agrees to perform the same upon the terms and
conditions herein set forth and to hold all rights, privileges and benefits
conferred hereby and by law in trust for the various persons who shall from time
to time be Beneficiaries, subject to all the terms and conditions herein set
forth.
7.17 Liability of Trustee
The Trustee shall incur no liability with respect to the delivery or non-
delivery of any certificate or certificates whether delivered by hand, mail or
any other means.
The Trustee in its personal or any other capacity, may buy, lend upon and
deal in securities of InfoSpace or Locus Holdings and generally may contract and
enter into financial transactions with InfoSpace or Locus Holdings or any of
their Affiliates without being liable to account for any profit made thereby.
The Trustee shall not be bound to give any notice or do or take any act,
action or proceeding by virtue of the powers conferred on it hereby unless and
until it shall be specifically required to do so under the terms hereof; nor
shall the Trustee be required to take any notice of, or to do so or to take any
act, action or proceeding as a result of any default or breach of any provision
hereunder unless and until notified in writing of such default or breach, which
notice shall distinctly specify the default or breach desired to be brought to
the attention of the Trustee and in the absence of such notice the Trustee may
for all purposes of this agreement to conclusively assume that no default or
breach has been made in the observance or performance of any of the
representations, warranties, covenants, agreements or conditions contained
herein.
The Trustee shall not be obligated to disburse any funds beyond those which
have been deposited with it and which remain in the Trust at the time of any
requirement that the Trustee disburse such funds.
The Trustee shall not be responsible for the validity or quantity of shares
or securities that it receives as a result of exchange.
Page 27
ARTICLE 8
COMPENSATION
8.1 Fees and Expenses of the Trustee
InfoSpace and Locus Holdings jointly and severally agree to pay the Trustee
reasonable compensation for all of the services rendered by it under this trust
agreement and will reimburse the Trustee for all reasonable expenses (including
taxes other than taxes based on the net income of the Trustee) and
disbursements, including the fees and expenses of experts, advisers and agents
retained pursuant to section 7.10, and including the cost and expense of any
suit or litigation of any character and any proceedings before any governmental
agency reasonably incurred by the Trustee in connection with its duties under
this trust agreement; provided that InfoSpace and Locus Holdings shall have no
obligation to reimburse the Trustee for any expenses or disbursements paid,
incurred or suffered by the Trustee in any suit or litigation in which the
Trustee is determined to have acted in bad faith or with negligence,
recklessness or willful misconduct.
ARTICLE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 Indemnification of the Trustee
InfoSpace and Locus Holdings jointly and severally agree to indemnify and
hold harmless the Trustee and each of its directors, officers and agents
appointed and acting in accordance with this trust agreement (collectively, the
"Indemnified Parties") against all claims, losses, damages, reasonable costs,
-------------------
penalties, fines and reasonable expenses (including reasonable expenses of the
Trustee's legal counsel) which, without fraud, negligence, recklessness, willful
misconduct or bad faith on the part of such Indemnified Party, may be paid,
incurred or suffered by the Indemnified Party by reason or as a result of the
Trustee's acceptance or administration of the Trust, its compliance with its
duties set forth in this trust agreement, or any written or oral instruction
delivered to the Trustee by InfoSpace or Locus Holdings pursuant hereto.
In no case shall InfoSpace or Locus Holdings be liable under this indemnity
for any claim against any of the Indemnified Parties unless InfoSpace and Locus
Holdings shall be notified by the Trustee of the written assertion of a claim or
of any action commenced against the Indemnified Parties, promptly after any of
the Indemnified Parties shall have received any such written assertion of a
claim or shall have been served with a summons or other first legal process
giving information as to the nature and basis of the claim. Subject to (ii)
below, InfoSpace and Locus Holdings shall be entitled to participate at their
own expense in the defence and, if InfoSpace and Locus Holdings so elect at any
time after receipt of such notice, either of them may assume the defence of any
suit brought to enforce any such claim. The Trustee shall have the right to
employ separate counsel in any such suit and participate in the defence thereof
Page 28
but the fees and expenses of such counsel shall be at the expense of the Trustee
unless: (i) the employment of such counsel has been authorized by InfoSpace or
Locus Holdings, such authorization not to be unreasonably withheld; (ii) the
named parties to any such suit include both the Trustee and InfoSpace or Locus
Holdings and the Trustee shall have been advised by counsel acceptable to
InfoSpace or Locus Holdings that there may be one or more legal defences
available to the Trustee that are different from or in addition to those
available to InfoSpace or Locus Holdings and that, in the judgment of such
counsel, would present a conflict of interest were a joint representation to be
undertaken (in which case InfoSpace and Locus Holdings shall not have the right
to assume the defence of such suit on behalf of the Trustee but shall be liable
to pay the reasonable fees and expenses of counsel for the Trustee); or (iii)
InfoSpace and/or Locus Holdings shall not have retained legal counsel on behalf
of the Trustee within a reasonable amount of time after it has given them notice
of a written assertion of a claim or action against any indemnified party. Such
indemnification shall survive the resignation and removal of the Trustee and
termination of this agreement.
9.2 Limitation of Liability
The Trustee shall not be held liable for any loss which may occur by reason
of depreciation of the value of any part of the Trust Estate or any loss
incurred on any investment of funds pursuant to this trust agreement, except to
the extent that such loss is attributable to the fraud, negligence,
recklessness, willful misconduct or bad faith on the part of the Trustee.
ARTICLE 10
CHANGE OF TRUSTEE
10.1 Resignation
The Trustee, or any trustee hereafter appointed, may at any time resign by
giving written notice of such resignation to InfoSpace and Locus Holdings
specifying the date on which it desires to resign, provided that such notice
shall not be given less than one month before such desired resignation date
unless InfoSpace and Locus Holdings otherwise agree and provided further that
such resignation shall not take effect until the date of the appointment of a
successor trustee and the acceptance of such appointment by the successor
trustee. Upon receiving such notice of resignation, InfoSpace and Locus
Holdings shall, with the approval of a majority of the holders of Locus
Exchangeable Shares in accordance with section 11.2 of the Share Provisions,
promptly appoint a successor trustee by written instrument in duplicate, one
copy of which shall be delivered to the resigning trustee and one copy to the
successor trustee. Failing acceptance by a successor trustee, a successor
trustee may be appointed by an order of the Superior Court of Justice of Ontario
upon application of one or more of the parties hereto.
Page 29
10.2 Removal
The Trustee, or any trustee hereafter appointed, may (provided a successor
trustee is appointed) be removed at any time on not less than 30 days' prior
written notice by affirmative vote of a majority of holders of Locus
Exchangeable Shares in accordance with section 11.2 of the Share Provisions.
10.3 Successor Trustee
Any successor trustee appointed as provided under this trust agreement
shall execute, acknowledge and deliver to InfoSpace and Locus Holdings and to
its predecessor trustee an instrument accepting such appointment. Thereupon the
resignation or removal of the predecessor trustee shall become effective and
such successor trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, duties and obligations of its
predecessor under this trust agreement, with the like effect as if originally
named as trustee in this trust agreement. However, on the written request of
InfoSpace and Locus Holdings or of the successor trustee, the trustee ceasing to
act shall, upon payment of any amounts then due it pursuant to the provisions of
this trust agreement, execute and deliver an instrument transferring to such
successor trustee all the rights and powers of the trustee so ceasing to act.
Upon the request of any such successor trustee, InfoSpace, Locus Holdings and
such predecessor trustee shall execute any and all instruments in writing for
more fully and certainly vesting in and confirming to such successor trustee all
such rights and powers.
10.4 Notice of Successor Trustee
Upon acceptance of appointment by a successor trustee as provided herein,
InfoSpace and Locus Holdings shall cause to be mailed notice of the succession
of such trustee hereunder to each Beneficiary specified in a List. If InfoSpace
or Locus Holdings shall fail to cause such notice to be mailed within 10 days
after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be mailed at the expense of InfoSpace and Locus
Holdings.
10.5 Assignment by Trustee
Notwithstanding anything to the contrary in this Agreement, the parties
acknowledge and agree, and any beneficiaries hereunder are hereby deemed to have
acknowledged and agreed that:
(a) effective June 30, 2000, Computer Investor Services Inc.
("Computershare") purchased the Corporate Trust business of the
-------------
Trustee; and
(b) the Trustee may, without the consent of any other party, assign all
its rights and duties under this Agreement, and under any ancillary
agreements executed in connection herewith, to such federal trust
company as may result from Computershare being continued as a trust
Page 30
company pursuant to the terms of the Trust and Loan Companies Act
(Canada). Notice of any such assignment shall be given by the Trustee
or its successor to each of the parties hereto, provided that, such
assignment shall be effective whether or not such notice is given and
without the approval of the parties hereto.
ARTICLE 11
INFOSPACE SUCCESSORS
11.1 Certain Requirements in Respect of Combination, etc.
InfoSpace and Locus Holdings shall not consummate any transaction (whether
by way of reconstruction, reorganization, consolidation, merger, transfer, sale,
lease or otherwise) whereby all or substantially all of its undertaking,
property and assets would become the property of any other person or, in the
case of a merger, of the continuing corporation resulting therefrom unless, but
may do so if:
(a) such other person or continuing corporation (herein called the
"InfoSpace Successor"), by operation of law, becomes, without more,
--------- ---------
bound by the terms and provisions of this trust agreement or, if not
so bound, executes, prior to or contemporaneously with the
consummation of such transaction, a trust agreement supplemental
hereto and such other instruments (if any) as are satisfactory to the
Trustee, acting reasonably, and in the opinion of legal counsel to the
Trustee are reasonably necessary or advisable to evidence the
assumption by the InfoSpace Successor of liability for all moneys
payable and property deliverable hereunder and the covenant of such
InfoSpace Successor to pay and deliver or cause to be delivered the
same and its agreement to observe and perform all the covenants and
obligations of InfoSpace under this trust agreement; and
(b) such transaction shall, to the satisfaction of the Trustee, acting
reasonably, and in the opinion of legal counsel to the Trustee, be
upon such terms and conditions as substantially to preserve and not to
impair in any material respect any of the rights, duties, powers and
authorities of the Trustee or of the Beneficiaries hereunder.
11.2 Vesting of Powers in Successor
Whenever the conditions of section 11.1 have been duly observed and
performed, the Trustee and, if required by section 11.1, InfoSpace Successor and
Locus Holdings or InfoSpace, as the case may be, shall execute and deliver the
supplemental trust agreement provided for in Article 12 and thereupon InfoSpace
Successor shall possess and from time to time may exercise each and every right
and power of Locus Holdings or InfoSpace, as the case may be, under this trust
agreement
Page 31
in the name of InfoSpace or otherwise any act or proceeding by any provision of
this trust agreement required to be done or performed by the Board of Directors
of InfoSpace or any officers of InfoSpace may be done and performed with like
force and effect by the directors or officers of such InfoSpace Successor.
11.3 Wholly-Owned Subsidiaries
Nothing herein shall be construed as preventing the amalgamation or merger
of any wholly-owned direct or indirect subsidiary of InfoSpace, except Locus
Holdings, with or into InfoSpace or the winding-up, liquidation or dissolution
of any wholly-owned subsidiary of InfoSpace, other than Locus Holdings, provided
that all of the assets of such subsidiary are transferred to InfoSpace or
another wholly-owned direct or indirect subsidiary of InfoSpace, except Locus
Holdings, and any such transactions are expressly permitted by this Article 11.
ARTICLE 12
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
12.1 Amendments, Modifications, etc.
This trust agreement may not be amended or modified except by an agreement
in writing executed by InfoSpace, Locus Holdings and the Trustee and approved by
the Beneficiaries in accordance with subsection 11.2 of the Share Provisions.
12.2 Ministerial Amendments
Notwithstanding the provisions of section 12.1, the parties to this trust
agreement may in writing, at any time and from time to time, without the
approval of the Beneficiaries, amend or modify this trust agreement for the
purposes of:
(a) adding to the covenants of any or all parties hereto for the
protection of the Beneficiaries hereunder provided that the Board of
Directors of each of Locus Holdings and InfoSpace and the Trustee and
its counsel shall be of the good faith opinion that such additions
will not be prejudicial to the rights or interests of the
Beneficiaries;
(b) making such amendments or modifications not inconsistent with this
trust agreement as may be necessary or desirable with respect to
matters or questions which, in the good faith opinion of the Board of
Directors of each of InfoSpace and Locus Holdings and in the opinion
of the Trustee and its counsel, having in mind the best interests of
the Beneficiaries it may be expedient to make, provided that such
Boards of Directors and the Trustee shall be of the opinion that such
amendments and modifications will not be prejudicial to the interests
of the Beneficiaries; or
Page 32
(c) making such changes or corrections which, on the advice of counsel to
InfoSpace, Locus Holdings and the Trustee and its counsel, are
required for the purpose of curing or correcting any ambiguity or
defect or inconsistent provision or clerical omission or mistake or
manifest error, provided that the Trustee and the Board of Directors
of each of InfoSpace and Locus Holdings shall be of the opinion that
such changes or corrections will not be prejudicial to the rights and
interests of the Beneficiaries.
12.3 Meeting to Consider Amendments
Locus Holdings, at the request of InfoSpace, shall call a meeting or
meetings of the Beneficiaries for the purpose of considering any proposed
amendment or modification requiring approval pursuant hereto. Any such meeting
or meetings shall be called and held in accordance with the articles and by-laws
of Locus Holdings, the Share Provisions and all applicable laws.
12.4 Changes in Capital of InfoSpace and Locus Holdings
At all times after the occurrence of any event contemplated pursuant to
section 2.7 or 2.8 of the Support Agreement or otherwise, as a result of which
either InfoSpace Common Shares or the Locus Exchangeable Shares or both are in
any way changed, this trust agreement shall forthwith be amended and modified as
necessary in order that it shall apply with full force and effect, with
appropriate changes to all new securities into which InfoSpace Common Shares or
the Locus Exchangeable Shares or both are so changed and the parties hereto
shall execute and deliver a supplemental trust agreement giving effect to and
evidencing such necessary amendments and modifications.
12.5 Execution of Supplemental Trust Agreements
No amendment to or modification or waiver of any of the provisions of this
trust agreement otherwise permitted hereunder shall be effective unless made in
writing and signed by all of the parties hereto. From time to time Locus
Holdings (when authorized by a resolution of its Board of Directors), InfoSpace
(when authorized by a resolution of its board of directors) and the Trustee may,
subject to the provisions of these presents, and they shall, when so directed by
these presents, execute and deliver by their proper officers, trust agreements
or other instruments supplemental hereto, which thereafter shall form part
hereof, for any one or more of the following purposes:
(a) evidencing the succession of InfoSpace Successors and the covenants of
and obligations assumed by each such InfoSpace Successor in accordance
with the provisions of Article 11 and the successors of any successor
trustee in accordance with the provisions of Article 10;
(b) making any additions to, deletions from or alterations of the
provisions of this trust agreement or the Voting Rights, the Exchange
Right or the
Page 33
Automatic Exchange Rights which, in the opinion of the Trustee and its
counsel, will not be prejudicial to the interests of the Beneficiaries
or are, in the opinion of counsel to the Trustee, necessary or
advisable in order to incorporate, reflect or comply with any
legislation the provisions of which apply to InfoSpace, Locus
Holdings, the Trustee or this trust agreement; and
(c) for any other purposes not inconsistent with the provisions of this
trust agreement, including without limitation, to make or evidence any
amendment or modification to this trust agreement as contemplated
hereby, provided that, in the opinion of the Trustee and its counsel,
the rights of the Trustee and Beneficiaries will not be prejudiced
thereby.
ARTICLE 13
TERMINATION
13.1 Term
The Trust created by this trust agreement shall continue until the earliest
to occur of the following events:
(a) no outstanding Locus Exchangeable Shares are held by a Beneficiary;
and
(b) each of InfoSpace and Locus Holdings elects in writing to terminate
the Trust and such termination is approved by the Beneficiaries in
accordance with subsection 11.2 of the Share Provisions.
13.2 Survival of Agreement
This trust agreement shall survive any termination of the Trust and shall
continue until there are no Locus Exchangeable Shares outstanding held by a
Beneficiary; provided, however, that the provisions of Articles 8 and 9 shall
survive any such termination of this trust agreement.
ARTICLE 14
GENERAL
14.1 Severability
If any provision of this trust agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder of this
trust agreement shall not in any way be affected or impaired thereby and the
agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
Page 34
14.2 Enurement
This trust agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns and to the
benefit of the Beneficiaries.
14.3 Notices to Parties
All notices and other communications between the parties hereunder shall be
in writing and shall be deemed to have been given if delivered personally or by
confirmed telecopy to the parties at the following addresses (or at such other
address for such party as shall be specified in like notice):
if to InfoSpace or Locus Holdings:
InfoSpace, Inc.
601 ▇▇▇/▇▇/ ▇▇▇▇▇▇ ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇.▇.▇.
Attention: ▇▇▇▇ ▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy to:
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
And a copy to:
Fasken ▇▇▇▇▇▇▇▇▇ DuMoulin LLP
Suite 4200
Page 35
Toronto Dominion Bank Tower
▇.▇. ▇▇▇ ▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: C. ▇▇▇ ▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Trustee:
Montreal Trust Company of Canada
Corporate Trust Services
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇/▇▇/ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
Any notice or other communication given personally shall be deemed to have been
given and received upon delivery thereof and if given by telecopy shall be
deemed to have been given and received on the date of receipt thereof unless
such day is not a Business Day in which case it shall be deemed to have been
given and received upon the immediately following Business Day.
14.4 Notice to Beneficiaries
Any and all notices to be given and any documents to be sent to any
Beneficiaries may be given or sent to the address of such Beneficiary shown on
the register of holders of Locus Exchangeable Shares in any manner permitted by
the by-laws of Locus Holdings from time to time in force in respect of notices
to shareholders and shall be deemed to be received (if given or sent in such
manner) at the time specified in such by-laws, the provisions of which by-laws
shall apply mutatis mutandis to notices or documents as aforesaid sent to such
Beneficiaries.
14.5 Counterparts
This trust agreement may be executed in counterparts, each of which shall
be deemed an original, but all of which taken together shall constitute one and
the same instrument.
Page 36
14.6 Jurisdiction
This trust agreement shall be construed and enforced in accordance with the
laws of the Province of Ontario and the laws of Canada applicable therein.
14.7 Attornment
Each of the Trustee and InfoSpace and Locus Holdings agrees that any action
or proceeding arising out of or relating to this trust agreement may be
instituted in the courts of Ontario, waives any objection which it may have now
or hereafter to the venue of any such action or proceeding, irrevocably submits
to the jurisdiction of the said courts in any such action or proceeding, agrees
to be bound by any final judgment of the said courts and not to seek, and hereby
waives, any review of the merits of any such judgment by the courts of any other
jurisdiction and hereby appoints Locus Holdings at its registered office in the
Province of Ontario as attorney for service of process.
IN WITNESS WHEREOF the parties hereto have caused this trust agreement to
be duly executed as of the date first above written.
INFOSPACE, INC.
By:________________________________
Name:
Title:
LOCUS HOLDINGS INC.
By:________________________________
Name:
Title:
MONTREAL TRUST COMPANY OF CANADA
By:________________________________
Name:
Title:
By:________________________________
Name:
Title: